Comment on “Anti-circumvention”

You can comment on the anti-circumvention language of the DMCA with the US Copyright Office until December 18. Declan McCullagh writes:

When enacting the DMCA in 1998, Congress ordered the Copyright Office to conduct regular reviews of one portion of the law. The librarian of Congress, who oversees the Copyright Office, may exempt specific groups from being covered by part of the DMCA.

In October 2000, two exemptions were set: Filtering researchers could study blacklisting techniques, and obsolete copy-protection schemes could be legally bypassed. Those exemptions expire in October 2003.

But the DMCA includes two broad prohibitions–on bypassing copy-protection technology and on distributing a program that bypasses that technology–and the librarian of Congress is permitted only to offer exemptions to the former.

Because it won’t affect researchers or companies that publish software code that circumvents copy-protection technology, the practical impact of the new rulemaking is limited. It could not have helped 2600 magazine, for instance, which the movie studios successfully sued for distributing a DVD-descrambling utility.

Ben Edelman, a filtering-software researcher at Harvard University’s Berkman Center, sued in July to overturn the second section of the DMCA. Companies that make filtering software typically include an encrypted list of sexually explicit or otherwise banned Web sites, and a researcher who distributes code that circumvents that copy protection could run afoul of the DMCA, Edelman asserted.

Hey, voice your concerns but be realistic about their impact. Consider this discussion of the subject by Katherine Seelye from last Sunday’s NY Times:

In fact, the public comment period has become a widely discredited measure of public sentiment because it has been susceptible to what critics call AstroTurf campaigns, the opposite of real grass-roots efforts, in which advocacy groups encourage their members to sign their names on form letters.

This is especially true since the emergence of e-mail. Mr. Iobst said that over the three-day Memorial Day weekend alone, the Park Service received 45,000 e-mail messages on snowmobiles. He said the agency considered those comments in its decision, “but not at face value.”

A court decision in 1987 gave officials clearance to ignore mass mailings. The United States Court of Appeals for the District of Columbia, in a ruling written by then Judge Kenneth W. Starr, said that a determination of a clean-water issue should not be based on the number of comments, most urging the Environmental Protection Agency to allow them to discharge pollutants into the water.

“The substantial-evidence standard has never been taken to mean that an agency rule-making is a democratic process by which the majority of commenters prevail by sheer weight of numbers,” Judge Starr wrote.

Has a comment period ever truly influenced a decision? Chris Wood, a senior adviser to the Forest Service chief in the Clinton administration, said that typical agency behavior is to “develop the plan you want, announce a public comment period and then do what you want to do.”